June 18, 2007

We've been talking about the lawsuit brought by two Yale law students who are suing various individuals over some nasty talk about them at the AutoAdmit. NPR will have an "All Things Considered" story on the subject today. I gave a 20 minute interview to the reporter and will be interested to see which part of it they use. Perhaps none. I'm going to guess that the story will be very supportive of the students and will underplay free speech concerns.

Now, we have a fine opportunity to see how people think about free speech on the internet when the politics are turned around. Seeing the Forest for the Trees tells us:

The Yale law students are thinking big, going to federal court (relying on a very minor copyright claim to leverage a complicated collection of state law claims) and seeking over $200,000. Kaplan took the opposite approach: He sued in small claims court. He won $7500, because he only sued for $7500 -- the most you can ask for in small claims court in California.

The blogger -- Yaman Salahi -- writes:

My speech has been punished by a ruling with no opinion explaining why or advising me what not to do in the future. My credibility has been tarnished by a trial with incredibly low standards for admissible evidence and a messy, inconsistent court procedure. And, for me, worst of all: I will never know what element of Kaplan's claim, if any, the judge agreed with, though Kaplan will certainly continue to claim that all of them were accepted, though he knows well that this is not the case.

So, thinking small looks like an effective way to squelch speech. Many people who write on the internet don't have much money, and $7500 (plus legal fees) is a lot to pay for writing something. Worse, if the court's opinion doesn't explain what you did wrong, how can you keep writing? You have to worry about the next small claims lawsuit.

Note: I have not looked into the underlying facts of this case or the practices and procedures of the court. It's quite possible that the blogger really did libel Lee Kaplan or commit some other tort and that the court proceeded fairly. I simply want to call this case to your attention to consider alongside the AutoAdmit case.

Seeing the Forest concludes:

This is a freedom of speech and right-to-blog issue. We must do something to reverse this because it will become a convenient way for right-wingers to harass all of us.

Oh, how short-sighted we are! Are you going to become a free-speech champion when the plaintiff is a right-winger and a big fan of tort law when the plaintiffs' claims resonate with feminist ideology? That's not the way law works.

UPDATE: You can listen to the NPR story on AutoAdmit here. None of my quotes were used. Here's the AutoAdmit discussion thread which has the guys listening to the story in real time, expressing their annoyance at the intervening news stories -- "Stupid Daniel Schorr talking about stupid George Bush!/How in f*ck did he ever get on the radio? He sounds like he had a stroke" --- and opining "Althouse got slighted." After the show: "Hands down fairest coverage this board has ever received. i love npr." "I like how they suggested GTO getting offerpwn3d would be some consolation to the Ps." GTO is Anthony Ciolli (the site's "educational director") had a job offer rescinded after the controversy hit the media.

ANOTHER UPDATE: Salahi has a thoughtful essay on his predicament here.

86 comments:

Looks like a false dilemma to me. Without knowing the facts -- was Kaplan libeled and were actual threats made to the law students -- posing this "choice" is just empty rhetoric, and doesn't differ from the ideological posturing Althouse is claiming to decry. She's filing things in the broad categories of "feminist" and "right wing" because she knows that appeals to her conservative, male readership. Yet, she clearly states she has no idea of the merits of either case. Feh.

It seems that a cogntive dissonance that permits being a free-speech champion when the plaintiff is a right-winger and a big fan of tort law when the plaintiffs' claims resonate with leftist ideology is quite easily tolerated.

Historically, free speech only for the Nomenklatura is precisely the way law has worked in every socialist and communist nation. For example, in Canada and the UK, it is illegal for a non-Muslim cleric to speak out against homosexuality in the name of religion.

So I see no reason why leftists wouldn't demand similar measures here. That's why Gore and other Democrats are talking about revamping old "eqiual time" laws, in order to kill conservative talk radio. They're not for free speech at all, only using it as a means to serve their own needs. Then it will be abolished, just like Chavez has done.

As usual, I'm more concerned about structural and procedural protections than substantive protections, and so (assuming arguendo that Salahi's claims about what went on are accurate and comprehensive) I'm far less interested in the First Amendment issue than the assertion that the rules of any court permit the court to dispose of the case before it and impose sanctions without explaining why, or yet more egregiously which of the elements of the complaint the court accepted. As Ann observed, "if the court's opinion doesn't explain what you did wrong, how can you keep writing? You have to worry about the next small claims lawsuit." Res judicata - but what's the res in this case? People fret about unpublished opinions, but this seems an order of magnitude more problematic, to the point that it would seem to raise due process concerns.

Beth said..."[Ann] clearly states she has no idea of the merits of either case."

It seems a lot harder to assess the merits of the case without a written opinion from the court. I mean, you could look at the complaint and review all the materials de novo, but that tells you nothing about why it came out the way it did.

Ann, the judgment is likely to be w/o attorneys' fees. That is the beauty of small claims court (except for those of us who have fools for clients, because we are lawyers representing ourselves). At least in the two jurisdictions I am licensed in, small claims does not typically allow attorneys, and therefore, not attorneys' fees.

I do appreciate the defendant's claim here that she really doesn't know why she lost, that the procedures were sloppy, etc. Those are my feelings to with small claims court, at least ever since law school.

I also am not going to bother delving into either of these quagmires of accusations and counter-charges.

Generally, I come down on the side of unfettered free speech, though I have emotional pain and suffering when I see our flag defaced or service people denigrated. The one neutral area where I think that speech should be restricted in the context of online expression is when someone creates www content that misleads the reader into thinking it belongs to another. The classic "false flag" case. An Example would be "Althouse.com"

For example, in Canada and the UK, it is illegal for a non-Muslim cleric to speak out against homosexuality in the name of religion.

I keep talking about my PC calculator where different parties can be evaluated by their level of victimhood. Then, the PC solution can be determined by comparison.

In this case, the Moslems would, of course, get points for their religion. But I would suggest that they might even get more additional points if they were non-Jewish Semites than if they were Black.

Of course, a Moslem homosexual would have more PC points than would a Muslim authority figures such as an Imman or Mullah of the same race or ethnicity, and would thus be able to criticize this negative view of homosexuality with impunity.

As I understand it the crux of the Lee Kaplan - Yaman Salahi case was that Salahi had sent emails to publishers telling demonstrable untruths about Kaplan in an effort to induce them to not buy and publish Kaplan's free-lance journalistic product. Hence, the nature of the case was tortious interference with a business advantage and NOT libel. The judge, a Berkeley City Municipal Judge (on the face of it, a more sympathetic ear for Salahi I cannot imagine), found for Kaplan.

Simon (actually) said:As usual, I'm more concerned about structural and procedural protections than substantive protections...Oh, yes, Simon, that's so like you, to be concerned about the structural and procedural protections than substantive protections.

I'm always saying that about you!

In fact, I don't think I know more than 1, maybe 2 other people who care more about structural and procedural protections over substantive protections.

Oh wait, there's that new guy at work. So 2, maybe 3 other people.

You're in rare company, Simon!

Have you ever considered the possibilities that (a) You take yourself waaay too seriously, and (b) you're a bore?

Normally, I would think the defendant in the small claims court action could either have the case moved to a court of general jurisdiction or seek injunctive relief from such a court, on the grounds that while the case is nominally over $7500, the consequences of a plaintiff's verdict would actually have a much larger value (i.e. shutting down the site). Also, to the extent the small claims court ruling will have an effect amounting to prior restraint, it seems likely it would be reviewable for legal error. I would be surprised if there aren't options to make sure the legal issues are ultimately reviewed by a real judge.

As for the uncertainty over what the defendant did wrong, in a tort case such as libel or intentional infliction of emotional distress (or tortious interference), the plaintiff would have to prove every single element of his claim. Thus, the normal presumption arising from a plaintiff's verdict is that all the allegations of the complaint were sustained. I'm not sure how much more precision can be required.

If the defendant wants a written opinion, it is incumbent on him to file an appeal. I don't see how this is any more unfair than any other case in which a general verdict is rendered by a jury. Absent an appeal on a narrow set of legal issues, a litigant is not entitled to receive a legal brief from the court discussing the finer points of law involved.

Are the decisions of small claims courts written down so that one can investigate the logic of the decision?

I read in this morning's paper about Nifong's collapse, and how the three students he targeted for persecution have millions of dollars of legal fees piled up. Will they be able to sue him for something like libel, or prosecutorial misconduct?

How about the Group of 88 at Duke? Would they be liable for libel toward the three students in question?

Could the three students sue the group of 88, or sue Duke, for not giving them adequate legal protection from the climate of adversity created by their own professors?

It will be interesting to watch that -- since it seems that a lot of the problems of freedom of speech have originated in universities and university settings, and perhaps the counterrevolution will be centered there as well.

The Drill SGT said... Kirby Olson said... Will they be able to sue him for something like libel, or prosecutorial misconduct?

It indeed will be interesting. (I'm not a lawyer, but am in bed with one :) My wife however knows as little about this facet of law as I do, so here goes my opine.

As I understand it, DA's have virtual immunity for acts that they undertake in the normal course of business. The Police have much less immunity. Nifong however is on record as having taken over the police investigation which may open him up to a suit. I would expect that the 3 victims might sue the stripper (not that she has assets, but to join her liability to the deeper pockets), the Police, The DA, and Nifong personally.

Further, they may sue Duke and various individuals for libel. They clearly weren't public figures, the Group of 88 made libelous statements, in violation of the Duke policies and procedures opening the students up to public condemnation and prejudicing the jury pool. Further, the Group of 88 wrote that 10-12 Duke departments joined in officially sanctioning their libel and the University took no action to sever that linkage and in fact reinforced it. Then there are the issues that Duke cooperated with the Police in depriving the students of their constitutional rights. (e.g. allowing a warrantless search of their dorms, bringing in a Duke lawyer to advise them to speak with the police without counsel and not to inform their parents, proving access to email accounts without a warrant, etc.)

Anyone notice that free speech on the internet helped rescue the slaves held at those kilns in China? The use of slave workers came under the spotlight in part because of an open letter posted online signed by a group of 400 fathers appealing for help in tracking missing sons they believed were sold to kiln bosses.

I'm not sure whether you're referring to Mr. Salahi or the lacrosse players. I don't think Mr. Salahi has a 1983 claim inasmuch as presumably he can challenge particular findings of fact, rulings of law and procedural irregularities on appeal.

Regarding the Duke situation, I don't know a whole lot about prosecutorial immunity, but if the prosecutor's misconduct is severe enough to warrent disbarment, it seems at least possible that the immunity defense will be unavailable. But then there is the deep pockets problem. Mr. Nifong may not be worth suing individually. So in that respect a 1983 action would seemingly make more sense.

I'm not all that familiar with the details of the Duke lacrosse situation, and I'm not sure how a due process theory would hold up. These guys were apparently exonerated prior to being deprived of "life, liberty or property" in any meaningful sense other than the cost of legal fees. It seems that tort law claims (in my jurisdiction there are separate claims for abuse of process and malicious prosecution) might be a better fit.

I guess that's all a long-winded way of saying I don't know whether a 1983 action makes sense here, or whether a due process claim is viable.

Jeff - I meant for Salahi, under the admittedly speculative theory that due process may require (as well as notice and opportunity to be heard) at least a statement of which claims in the complaint the court accepts. This is, to be sure, a fairly thin argument on my part, but I don't think it's completely novel; in Goldberg v. Kelly, for example, the court observed that due process requires "require[s] that a recipient [of government benefits] have timely and adequate notice detailing the reasons for a proposed termination" of benefits. 397 U.S. 254, 267-8 (emphasis added). Yikes - I'm turning into Justice Brennan!

Oh, for the Lord's sake. This is not a "free speech" issue. It doesn't become such an issue until the government specifically gets involved in the matter. This is a dispute between private individuals who were holding a conversation as private individuals, in the private sphere.

It's like suggesting that suing the driver who rear-ended me is a Commerce Clause issue...

On the other hand, my whole attitude (which I've expressed before) is that the anonymity of the internet is more damaging to society than anything else about it, so anything that reduces (or eliminates) that anonymity is something I'd support.

Will they be able to sue him for something like libel, or prosecutorial misconduct?

Here in Wisconsin, Georgia Thompson, the state employee convicted by US Atty Stephen Biskupic on no evidence, apparently only to provide campaign fodder for Gov. Doyle's Republican opponent, has asked the state for $360K to cover her losses. There is a state board that takes petitions from citizens who have been wronged by the Govt, and Ms. Thompson certainly qualifies. (Of course, if things were right, the US Atty office would pay the bill.) The board submits recommendations to the legislature and Gov. Doyle says he'll sign the recompense bill if he gets it. Why shouldn't he?

So suppose you were sued because you gave a nasty but honest restaurant review. Or because your political bumper sticker offended someone of the opposite political persuasion. Or you're an artist, and fundamentalist parents sue because their children saw your vulgar paintings. You really don't think these suits impact your ability to speak freely?

As for anonymity, there are arguments to be made against it, but I think it's vitally important. Anonymity facilitates discussion of taboo subjects and whistleblowing. It allows us to talk about our heartfelt beliefs without fear that our bosses will fire us because they don't share our views.

The AutoAdmit board contains a lot of seemingly worthless filth. But that filth serves an important purpose, which people like Brian Leiter don't seem to comprehend. That filth indicates to posters on the board that they are free to talk about anything. It opens the door for discussions of secret beliefs on taboo subjects. Many intelligent discussions on the board simply don't take place elsewhere because of fear of retribution.

If you attack the pure filth, and say it isn't First-Amendment protected, then you are forced to draw the First-Amendment line uncomfortably close to the real discussions. Posters will think twice before posting about ideas they honestly believe are interesting and worth discussing. If you don't protect the filth, you are going to chill the substance.

I believe substantive speech on the AutoAdmit board has already been chilled by the actions of the plaintiffs. Nobody wants to be sued, especially in a sensational lawsuit where there's a high possibility of guilt by association. Remember, when a poster is outed, every one of her posted statements can be attributed to her. The world is then free to know a person's private views on everything from affirmative action to the war in Iraq.

I believe there should be some restrictions on internet speech. But to say that private lawsuits pose no threat to free speech appears absurd.

Pogo, not the merits of their claims of being threatened. The dissection focused on a comment by their attorney, nothing substantial, and Ann said during that post that she wasn't making a claim about other possible reasons for action on the part of the law students.

I thought she was stating that the complainiants were using a weak assertion of copyright infringement in order to make claims that belonged in multiple separate state courts.

Others in the discsussion argued the legitmacy of those latter claims, including whether or not actual threats were invovled. So yes, she didn't address the legitimacy of that portion of the complaints, except to ponder whether, even if true, suing would cause them to be worse off than not.

I think it is becoming increasingly evident that both conservatives and liberals are using the courts to stifle speech they don't like. Strictly speaking, many of those cases may have merit, but their additive weight ends up crushing free speech. (My own posts were on the side of the women suing specific commenters whose posts were decidedly threatening.)

So it's a quandary. A limited action against a single commenter is different than shutting down an entire discussion board, which is what they've done. This forces the internet into becoming more and more like the corporate and University environment, where one is enjoined from discussing anything at all of real substance. I think we're entering the Fahrenheit 451 era described by Ray Bradbury, in which aggrieved minorities succeed in deleting all "offensive" speech.

Beth: I'm writing about abstract principles, how much we should value free speech as opposed to the use of tort law to defend one's reputation. Both cases involve this, and I'm saying that people should be consistent, not lean one way or the other depending on how much they like the plaintffs.

Simon: It's not res judicata if Kaplan sues Salahi for the next thing that he writes.

Bruce: He started with no lawyer, then got one and regretted he didn't get one earlier. How is he supposed to do a decent job of defending himself in a case like this? The attorney's fees I'm referring to are his own. I'm not suggesting he had to pay Kaplan's.

verso: yes. It will be cool to see what they use. Or possibly not cool. I recorded everything I said, so if it's unfair to me, you can bet I'll blog about it.

Zeb: He apparently argued both defamation and interference with business but Salahi says he can't tell what the basis for the decision was, which is part of the problem. I agree that writing to employers and lying is much more invasive than what the AutoAdmit people did.

Simon: In §1983 cases, prosecutors have absolute immunity for things done in the "prosecutorial" phase of their work. If the work can be characterized as the "investigative" phase they have qualified (good faith) immunity. So the key seems to where is the line between the prosecutorial and investigative work of a prosecutor.

Halo-jones: It's a free speech question even when it's not a question of constitutional rights, but if you can get a judicial remedy the government is involved and the First Amendment does apply. Read New York Times v. Sullivan, in which a private individual sued the NYT for something it published. The NYT had a First Amendment defense.

MadisonMan - I know what you meant, but the critique of Biskupic starts to look shaky if you concede that he didn't convict Thompson. A prosecutor can, at most, bring a case to trial. It's the jury that decides if the evidence is sufficient. So understood, the criticism of Biskupic becomes that he brought a case to trial where a reasonable jury shouldn't have convicted. But a jury did convict - so who's this really a criticism of, Biskupic or the jury?

To be sure, a prosecutor would seem to misbehave if s/he brought a case s/he believed had no merit, particuarly if its only intent was to harrass the defendant. Is that the allegation here? I've not followed the story closely enough to know that.

So Ann and Simon: In §1983 cases, prosecutors have absolute immunity for things done in the "prosecutorial" phase of their work. If the work can be characterized as the "investigative" phase they have qualified (good faith) immunity. So the key seems to where is the line between the prosecutorial and investigative work of a prosecutor.

Nifong discussion really isn't hijacking the thread, because there is a libel component to the Duke stuff, anyway:

1. Could one look at the line between investigation and Prosecution and say that clearly things done by Nifong before there were indictments was investigative, including the NTO DNA initial cover up, the Line-up that wasn't a line-up and the extra-Judaical statements? All of those occurred before the GJ.

2. Does the fact that he was disbarred and found to have lied in numerous ways with "conduct involving dishonesty, fraud, misrepresentation, deceit" have any bearing. For us non-legal profession professionals, this would be called "acting outside the scope of ones employment" when we get sued.

3. Does that fact that he took over the investigation and there are emails from Police leadership directing the investigators to report to Nifong and clear everything through him, move the line?

Ann, I understand the principle, specifically the issue of consistency. Where we divert is on the issue of how you frame your concern for these principles, along the fault lines of good feminists vs. bad feminists, and right vs. left. I think your framework is contrived. Ans in the Auto Admit case, at least, we don't have any reason to assume the only, or even main, issue is the law students' reputation; there are also allegedly issues--which must be demonstrated--of stalking, and palpable threats to the law students' safety. Those aren't just principles we like or don't like, they're allegations of illegal behavior, not just offensive speech.

Thirty+ years ago when I was a young attorney, an old judge took me aside and advised me not to get a judge mad because even if you have a clearly winning case it's possible he will rule against you and it would cost $5,000 to get the case reversed on appeal.

Unfortunately, our system of justice requires the losing party to pay the costs of appeal.

But I know of no other better system than ours.

Sometimes you have to stand up for your rights. Otherwise, pay the $7500 judgment and go away.

Jim said... Thirty+ years ago when I was a young attorney, an old judge took me aside and advised me not to get a judge mad because even if you have a clearly winning case it's possible he will rule against you and it would cost $5,000 to get the case reversed on appeal.

In the world of government contracting, I have a similar saying:

"You can win any one fight with a contracting officer, but you won't win any others".

MadisonMan, The Georgia Thompson case involved a conviction by a court (whether there was a jury is unclear) and a reversal on appeal. I wonder if you are advocating restitution for all cases where there is a conviction at trial and a reversal by an appellate court?

Apparently there is a related case involving Dennis Troha and an imminent plea deal. Is the Troha case related to the Thompson case?

I wonder if you are advocating restitution for all cases where there is a conviction at trial and a reversal by an appellate court?

I only point out, after someone asked if the Duke Laxers could sue, that if they lived in Wisconsin, they could petition the state for redress for having been wronged by the government, which is what Georgia Thompson is doing, seeking $360K. You petition the board, the board makes recommendations to the Legislature, and legislation is then drafted (or not), passed (or not) and signed by the Gov. (Or not). In the Thompson case, Doyle has said he would sign the bill if it made it to him. And why shouldn't he? Good luck to Ollie or Scooter doing this - they're not exactly WI residents.

Many democrats in the House/Senate are grumbling that the US Atty's office should pay -- but they're just fishing for soundbites.

Incidentally, the $360K is for lawyer's fees, taxes on the award if it is granted, and other sundry things. This is a woman who had to sell off her house to defend herself against an overzealous prosecutor.

I'm not very familiar with the Troha investigation. My inclination is that it looks a lot less bad for Troha now than it did some months ago.

I'm a little disturbed by the suggestion that free speech means consequence free.

In both the Autoadmit and Kaplan cases, you had people writing provocative blogs and when someone went after them, they suddenly cry that they are being oppressed (insert Holy Grail scene here.)

(Note: for those who don't remember, the women in the Auto-Admit case were publishing a very provocative, and really dumb, blog which is what triggered the entire thing in the first place. In other words, they weren't picked at random--they said, "look at me look at me" and when someone looked they cried, "how dare you look at me." Kind of like Angelina Jolie complaining about unfair press coverage.)

I should add -- I think Georgia Thompson's case is helped because she was prosecuted for essentially doing her state job successfully: securing the lowest bid for a State contract. It was her misfortune that the low bidder had contacts with the Governor that made her innocuous actions look suspicious to the US Attorney who was obviously looking for a bigger scalp.

STATEMENT OF THE BOARD OF TRUSTEES AND THE PRESIDENT OF DUKE UNIVERSITY:

This has been an extraordinary year for Duke students David Evans, Collin Finnerty and Reade Seligmann, who were accused of serious crimes they did not commit. In April, after a thorough review, the North Carolina Attorney General declared that they were innocent of all charges and that the charges never should have been brought. We welcomed their exoneration and deeply regret the difficult year they and their families have had to endure. They conducted themselves with great dignity during their long ordeal.

These young men and their families have been the subject of intense scrutiny that has taken a heavy toll. The Board of Trustees and the President have also determined that it is in the best interests of the Duke community to eliminate the possibility of future litigation and move forward. For these reasons, and after considerable deliberation, the trustees have agreed to a settlement with each student. Beyond this statement, the resolution is a private matter among the students, their families and Duke.

This past year has been hard for many people who care about Duke -– for students, faculty, staff, alumni, families and friends –- and for the three students and their families most of all. We resolve to bring the Duke family together again, and to work to protect others from similar injustices in the criminal justice system in the future.

MadisonMan & Pogo, I'm in agreement about the ability of prosecutors to bring the entire weight of the government down upon a citizen. That is a fearsome weapon.

But Mike Nifong violated established legal procedures concerning disclosure of exculpatory evidence. For this he was disbarred and his life is ruined. I agree with this result.

But what about Biskupic? Did he violate any rules in the Thompson case? Was he referred to the appropriate attorney disciplinary committee for improprieties? Did the appellate court find that he acted improperly? Is there any parallel to the Nifong case?

"Note: for those who don't remember, the women in the Auto-Admit case were publishing a very provocative, and really dumb, blog which is what triggered the entire thing in the first place."

Actually, I don't remember - in fact, I'm pretty sure I've never heard this claim at all. Is the above comment simply confused, a bit of lazy thinking/misrememory facilitated perhaps by a victim-blaming mentality, or did I simply miss this little detail.

Sarge,Have the faculty members who signed that letter condemning the students apologized or been censured, do you know?

Joe said..."for those who don't remember, the women in the Auto-Admit case were publishing a very provocative, and really dumb, blog"

I second Dan's comment; setting aside that even if they were, that's no defense of the things that were written about them on autoadmit (you're basically presenting a variation of the "she asked for it" defense), what was the URL of this supposed "very provocative, and really dumb, blog"?

You have wind around a bit, but what emerges is not as black-and-white as is being presented.

BTW, I'm not defending what was written about them. I do suggest, however, that they grow some backbone and get over it. I think the lawsuit is going to fail and the resulting bad publicity from that will do more harm to them than anything on AutoAdmit.

So if Filipovic's not one of the plaintiffs, what does one of her posts have to do with anything, Joe? Even if we flatter Feministe by assuming for sake of argument that they're a "very provocative, and really dumb, blog," it isn't published by the plaintiffs, and that post doesn't mention any blog published by the plaintiffs, unless I misread it. So... What's your point?

a) We don't know if Filipovic's is one of the plaintiffs, the suit is filed by Jane Does.

b) Filipovic claims to be one of the people referenced by the original article on the controversy.

c) If you follow the convoluted threads, you find an alignment between the claims of the lawsuit and actions by Filipovic and/or friends and/or co-bloggers of hers. (There is, or was, another blog I cannot find which was co-blogged by another of the people at the center of the AutoAdmit controversy WHEN IT BROKE [whether any are one of the two plantiffs--who knows? But circumstantial evidence suggests they are.]

d) This is about what mostly anonymous posters said, not what they did, a fact lost on many people commenting on this entire issue. However ugly speech may be, it's still free. (Though not free of consequences--the founder of AutoAdmit lost a job offer shortly after this story broke. Why the other people did not get job offers is anyone's guess--I suspect it had nothing to do with AutoAdmit.)

Now, in your 5:06 PM comment, you concede that you don't know if she's one of the AutoAdmit plaintiffs or not. This squarely undercuts your 4:21 comment, and for that matter, since you imply that you don't know who either of the plaintiffs are ("We don't know if Filipovic's [sic] is one of the plaintiffs, the suit is filed by Jane Does"), your 1:31 comment is hanging by a thread.

How can you assert that the postings at AutoAdmit were "triggered" by the activities of "the women in the Auto-Admit case" (emphasis added), specifically "publishing a very provocative, and really dumb, blog," unless you know who the Jane Doe plaintiffs are?

To salvage your 1:31 comment, you need to provide the URL of the blog you're referring to, and explain how it's tied to the plaintiffs in the AutoAdmit litigation.

2. I don't claim to be one of the women referenced in the original article (by which I assume you mean the article in the Washington Post). I was not one of those women. Everything I've said about AutoAdmit I've said under my own name.

3. As far as I know, none of my friends or co-bloggers are involved in this. I do know the identities of the two Jane Does in the suit. I have never met nor conversed with either of them (at least not to my knowledge).

4. I wrote about the AutoAdmit story when it "broke" in the Washington Post because my name had been coming up on AutoAdmit for months. I had written about AutoAdmit's harassment of female law students a year before the Post did.

5. I write about AutoAdmit because the other women are private law school students, without blogs and without public mouthpieces. Their identities are very private, and when you google them very few items come up. I run a popular blog, I've written a feminist newspaper column, and I occassionally freelance -- my name is all over Google, and a few AutoAdmit references may be unsavory, but probably won't harm my job prospects as badly as they may have harmed others. I write about AutoAdmit because I have personal experience with it, and because I'm in a position to write under my real name without suffering major employment-related consequences (after all, if employers are hesitant to hire law students who may be lightening rods for controversy, they're going to avoid the prominent political blogger, autoadmit or no autoadmit).

Cohen said he no longer keeps identifying information on users because he does not want to encourage lawsuits and drive traffic away. Asked why posters could not use their real names [pseudonyms required], he said, "People would not have as much fun, frankly, if they had to worry about employers pulling up information on them." [Emphasis added.]

This is about what mostly anonymous posters said, not what they did, a fact lost on many people commenting on this entire issue. However ugly speech may be, it's still free.

Try to say this when your name and address is published on a hostile message board, where members encourage taking candid snapshots of you as well as acts of violence, then maybe I'll believe you. Otherwise you're being a dumbass turdbrain. As for Althouse, to compare this to a small claims case is disingenuous as Beth indicated, It's comparing apples to oranges, but it's clear by now that Althouse has no interest in honestly debating the issue. *rolls eyes*

Does this mean I can start making violent threats on Match.com to some of the girls that have been rejecting my profile? :-) I know y'all will back me on this right? Right?

By the way, for the record I consider myself a staunch conservative Christian (or is it Christian conservative?) Never thought I'd see the day where I'd be defending secular feminists though. My whole world has gone zonkies.

But it does seem to me that this reluctance to empathize with the victims of AutoAdmit comes largely from amoral libertarian personalities like Althouse and Glenn Reynolds, even though they hardly represent the broad spectrum of true conservatism (and let us all thank God for that.... no pun intended).

But for those of us who actually believe in right and wrong, we tend to see threatening acts of violence and rape (as well as making systematic efforts to defame someone) as a bad thing. We're funny that way.

Lincoln said..."[T]his reluctance to empathize with the victims of AutoAdmit comes largely from amoral libertarian personalities like Althouse and Glenn Reynolds, even though they hardly represent the broad spectrum of true conservatism ..."

Althouse is a libertarian? Really? Did you, ahh, just skip that little fracas in December? Really? Really, Lincoln - you missed the part where she said her "real problem was with the libertarians. The conservative traditionalists, the Burkeans, have a safeguard against the worst mistakes of the ideologues"? You ought to start by getting your facts straight.

rape threats and other assorted threats of violence fall do under the category of being actionable and not simply being "bad." aren't those the basis for stalking laws?this "grow a backbone, ladies, these men have the right to post contact your contact info and assorted threats of sexual violence- and you can't do anything about it, because it's FREE SPEECH-" attitude is beyond disturbing.

"But for those of us who actually believe in right and wrong, we tend to see threatening acts of violence and rape (as well as making systematic efforts to defame someone) as a bad thing. We're funny that way."

Ann Althouse:

"Lincoln: You're failing to distinguish between 'bad' and 'actionable.'"

Me (Patterico):

"I tend to see threatening acts of violence and rape (as well as making systematic efforts to defame someone) as an actionable thing."

I have already said that the complaint may identify some torts. But there is a lot in there that does not seem tortious and a lot of defendants seem to be roped in for little reason but intimidation. As to words in threat form... to avoid a First Amendment problem, they need to be real threats, as I've said repeatedly, and that is a factual question yet to be determined. To be tortious, they need to fit the state law, something like "intentional infliction of emotion distress." I would have to read the case law -- presumably Connecticut's law -- to see how high the standard is.

I agree if you mean you have to distinguish between stuff that's merely louche and badly behaved, on the one hand, and the stuff that's violent - not necessarily threatened explicitly, but inherent in the speech. In the latter case, doesn't the calculus change? And aren't the balance of the complaints here ultimately about violence up to and including rape?

It's one thing to say "so-and-so is hot." If that was a crime, Mortimer and I would be getting nervous. But we're not just talking about that. It's quite another thing to say "gee, if someone could get a photo of so-and-so at the gym, that'd be awesome," and even worse "I'd like to rape so-and-so." Both are threatening.

John said..."Why are you always so tentative about this? Is there any doubt in your law professor's mind that the complaint sets forth legally sufficient claims for defamation?"

Because if I were the defendant's lawyer I would fight, on every point, until I was sure I couldn't. There are several elements to a defamation claim, and I haven't read the Connecticut cases (assuming Connecticut law applies). I haven't itemized the claims I'm sure are not good either.

Beth said..."Right. And that's what will happen, in court. So why continue attacking these women for going to court, presenting their argument, and seeking to establish those facts?"

You can go back and read my post on whether it's a good idea to sue. I think calling that an "attack" on them is exaggerated, but you don't seem to appreciate that lawsuits are intimidating and very costly. You don't just casually sue people to test out theories and let the court decide. It's a big deal to sue somebody.

Prof. A: I don't know either Kaplan or Salahi. I'm not much impressed by either's writing. (This appears to be a blog from Kaplan responding to Salahi's blog responding to Kaplan's writing. I say "appears" because in the blog posts attributed to him, he slips randomly between referring to himself in the first and third person.) But I start off being very skeptical of both of them, as I would be of anyone who devotes an entire blog (using that word in its most loose if literal meaning) devoted to ranting about one other person's rants.

I did read the case documents from the Alameda County website that Salahi linked. You can't tell much from them, but they do confirm that, as Kaplan claims: (1) Salahi didn't bother to show up for the first trial, which therefore appropriately resulted in a judgment against him by default; (2) that the default judgment was set aside and a new trial granted, at which both Salahi and Kaplan testified, and after which judgment was again entered for Kaplan for $7500; and (3) that Salahi appealed, and then got a trial de novo (meaning the prior results were thrown out and both sides started from scratch), which again resulted in a judgment for Kaplan for $7500.

I don't know whether or not Salahi has further rights to appeal, and like you, I don't know whose arguments, if anyone's, are meritorious.

But you can stand outside of any small claims court in the country for a couple of days, and you'll hear at least 75% of the losing litigants tell you a tale that's just about indistinguishable from Salahi's: "The judge ignored my evidence!" or "My opponent just lied and got away with it!"

I'm not inclined to jump to the conclusion that Salahi's rights were violated. And I'm certainly not inclined to jump to the conclusion that three different judges, two of whom heard the live witnesses testify under oath, made wrong decisions that somehow threaten free speech on the internet.

I appreciate your disclaimer to the effect that you haven't "looked into the underlying facts of this case or the practices and procedures of the court." But when you quote at length from one side, without quoting the other, and then post an update praising Salahi's "thoughtful essay on his predicament," and  most of all  when you title your own post "Another lawsuit threatens free speech on the internet," then most readers are not going to interpret your post as being neutral as between these two sides.

Indeed, Salahi is now pointing to your post as justification for him begging for cash contributions  the sky is falling, doncha know? because "underhanded legal tactics like these pose [a threat] to all bloggers"! Your almost-an-endorsement and links may generate enough revenue for him to pay his judgment (although I wouldn't bet any of my own money that he'll use the contributions for that purpose).

I just dunno why you'd want to get in the middle of this kind of pissing match. I'm mildly disgusted at myself for spending the time I have in preparing and writing this comment.

But in any event, I do think you've done at least an implicit injustice to small claims court judges. I don't practice in California, so I have no specific experience with their system either. But most small claims court judges are long on common sense and short on formality. Sight unseen, I'd be much more willing to put my confidence in the decision of the two judges who heard the testimony than on either of these two bloggers alone. And if you are really critical of small claims court judges for not writing written opinions to justify their decisions, I really do suggest that you spend an evening or two watching small claims court judges in action  and then do some back-of-the-envelope calculations about how many of your tax dollars would be required to paper up their decisions. They're meant to be courts where people can go without lawyers  although both sides had them here, which is actually another reason to doubt a claim that one side railroaded the other.

Most of the time, the leftist blogs simply don't allow any criticism on their sites. I dropped a sassy little riposte to a piece by Eric Alterman on what a meanie Marty Peretz is at TNR. All the posts were nasty jibes at Peretz and I dared to defend him. The post simply was not put up; you wouldn't want any contrary thoughts on an Ezra Klein blog, would you? Might demoralize the working class heroes who regard Ezra's drivel as their intellectual fodder.

Can I appeal the judge's decision?You can't appeal if you were the one who filed the claim. If someone else files a claim against you and you lose, you can appeal.

How do I file an appeal?If you were at the hearing, you must file a form called "Notice of Appeal." You have 30 days to do this after the date the clerk mails the Notice of Entry of Judgment. The current cost to file a Notice of Appeal is $75. Click here for more information.

What happens if someone else appeals?You'll have a new hearing. You'll have to bring your evidence and tell your side of the story again. This time, you can bring a lawyer to represent you.

Beldar writes: "I just dunno why you'd want to get in the middle of this kind of pissing match."

Because I hate the idea of a journalist suing a blogger who is criticizing him. Perhaps there is a real tort in there -- some defamation -- but I don't like to see a journalist doing this to a college student. I think it's perfectly legitimate to have a blog that is focused on one journalist and argues with his every point.

"....But most small claims court judges are long on common sense and short on formality. Sight unseen, I'd be much more willing to put my confidence in the decision of the two judges...."

I don't think the small claims approach is good for a case like this, even if they are good at what they ordinarily do and are good at doing.

As for that "deconstructs" blog. Thanks for pointing it out. It does demonstrate that the "more speech" approach is available to Kaplan, who says some very nasty things about Salahi, which may or may not be true. It tends to demonstrate that the two men are in a big political argument. And it is not written in a style that gives me confidence in Kaplan.

am I the only one somewhat disturbed that $7500 counts as a "small claim"?

No. $7500 is well more than a year's worth of unearmarked money in my house. I'm reminded of the Artist that Ann blogged about months ago who cleaned house and found a check for $7100. I still can't believe he could lose such a thing!

MM - Preventing courts from unilaterally depriving citizens of large portions of their income seems like a road already traveled. I've never really thought about it before, but given my view on incorporation (that those privileges and immunities enjoyed by citizens of the United States against the federal government were afforded to citizens of the states against their state governments by the 14th Amendment), I suppose I'd be bound to overrule the corpus of precedent to the contrary, hold the 7th Amendment applicable to the states, and thus that small claims courts in many cases (this one included, since Salahi would be unlikely to waive trial by jury) would fail an as-applied challenge thereunder.

Joshua - That's not a valid comparison. It's one thing to not have a comments section, quite another to have a comments section and then delete comments that disagree with the editorial line of the blog.

It appears that Salahi tried to do what pro-Islamists like CAIR regularly does to stifle criticism of Islam; write letters to businesses making disparaging and phoney claims about the writer in an effort to intimidate and silence the critic and to influence the employer into not hiring that person, all in an effort to shut the person down and marginalise him.

Now that Salahi has been held to account, he is playing the "free speech" victim and drumming up cash. How strangely familiar....